Can a Virginia county force residents to drop their existing private trash collection service and use the county's service instead?

Plain-English summary

A delegate asked the AG whether Fairfax County could require residents who currently use private trash collection to switch to the county's service. Some McLean residents were already paying for trash collection through a nonprofit cooperative that hired a county-licensed private hauler, and the county was planning to create new sanitary districts that would impose mandatory county trash collection and add a service charge to property tax bills.

The AG concluded the county could do this, subject to statutory conditions. Virginia's local government code (§ 15.2-901 through § 15.2-939) gives localities broad authority to regulate trash collection. The General Assembly has expressly declared the policy of the Commonwealth "to authorize each locality to displace or limit competition in the area of garbage, trash or refuse collection services" and directed and authorized localities to exercise their powers "notwithstanding any anti-competitive effect" (§ 15.2-931).

"Displace" means "a locality's provision of a service which prohibits a private company from providing the same service and which the company is providing at the time the decision to displace is made" (§ 15.2-934).

The displacement procedure has specific steps:

1. Public hearing. At least one public hearing on the advisability of the locality providing the service, with notice to the public and to all identifiable private companies that currently provide the service.
2. Written finding of at least one of four things: (a) adequate private services aren't available; (b) private services have created a nuisance or endangered public health; (c) private services cannot meet the need in a reasonable and cost-efficient way; or (d) displacement is needed to develop or operate a regional refuse collection system.
3. One-year window after the finding to put the new public service in place.
4. Compensation to displaced private companies. Either five years' notice, or payment equal to the previous 12 months' gross receipts from the displacement area.

Alternatively, the county can take over exclusively when 55% of property owners in the affected area petition for it.

Finally, the AG noted that a locality may, but is not required to, maintain parallel public and private services (i.e., allow opt-outs). That's a policy choice for the local governing body.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Sections 15.2-927 through 15.2-939 have been amended over time. Specific Fairfax County rules and the substantive standards for displacement may have changed. The general framework (locality may displace private services with notice, hearing, written finding, and either notice or buyout) has been stable.

Common questions

Can a county just declare that all residents must use county trash collection?
Not without going through the displacement procedure. The procedure exists to give the public a chance to weigh in, to put the locality on record about why it's necessary, and to compensate private companies that lose business. Skipping any step opens the ordinance to challenge.

What if I love my current private hauler and don't want to switch?
The opinion says the county may (but is not required to) maintain a parallel public and private service. So the county could let you keep using your private hauler. The opt-out is up to the county. If the county chooses mandatory service, individual preference is not a basis for exemption.

What's a "sanitary district"?
A geographic subdivision that a county may create to provide specific services (trash, sewer, water) and assess charges to fund them. Fairfax was planning new sanitary districts as the legal mechanism for the mandatory service.

What about the 55% petition option?
If 55% of property owners in an affected area petition the governing body to take over collection, the locality can assume exclusive control of trash service in that area. This is a citizen-initiated path to mandatory public service, distinct from the locality-initiated displacement procedure.

Are there limits on the service charge?
The opinion does not address fee caps. Sanitary district charges are subject to other statutory rules, and the lien and collection authority parallels other utility-type charges.

Does this preempt all anti-competitive concerns?
For trash collection in Virginia, yes. The General Assembly has expressly authorized displacement of competition. § 15.2-931 ("notwithstanding any anti-competitive effect"). Federal antitrust state-action doctrine analysis would also likely come into play if a private hauler tried to sue under federal law.

Background and statutory framework

Local authority over trash and refuse collection sits in Va. Code §§ 15.2-901, 15.2-927 through 15.2-939. The key sections:

• § 15.2-901. Authorizes localities to require property owners to remove trash, refuse, litter, and other substances that endanger health or safety.
• § 15.2-931. Declares the Commonwealth policy authorizing localities to displace or limit competition in garbage, trash, or refuse collection services, "notwithstanding any anti-competitive effect."
• § 15.2-934. Sets out the displacement procedure (notice, hearing, written finding, time limits, and compensation requirements) and defines "displace."

The four permissible bases for the written finding (any one is enough): adequate private services unavailable; private services have created nuisance or endangered public health; private services cannot meet the need in a reasonable and cost-efficient way; or displacement is needed to develop or operate a regional refuse collection system.

The compensation requirement (five years' notice or one year's gross receipts) gives displaced private companies a measure of protection, recognizing they've built businesses around current service patterns.

Citations

• Va. Code Ann. § 15.2-901 (2008)
• Va. Code Ann. § 15.2-927 (2008)
• Va. Code Ann. § 15.2-931 (2008)
• Va. Code Ann. § 15.2-934 (2008)
• Va. Code Ann. § 15.2-939

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-072-Comstock.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

August 12, 2010

The Honorable Barbara J. Comstock
Member, House of Delegates
Post Office Box 6156
McLean, Virginia 22106

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Delegate Comstock:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether Fairfax County has the authority to require residents who are currently using a private trash collection service to join the county trash collection service.

Response

It is my opinion that the county may require residents to give up their private trash collection service and join the service provided by the county provided that the statutory notice, hearing and waiting period requirements are met, or 55 percent of the affected property owners petition the governing body to take over the collection service. I further conclude that a county may, but is not required to, allow residents to opt out of the public trash collection service and maintain a parallel private collection service.

Background

You relate that Fairfax County plans to create new sanitary districts that would provide mandatory county trash collection in McLean. Currently, a group of local citizens manages its garbage disposal through a nonprofit corporation that employs a county-licensed private trash company. You indicate that the county service would supplant this service and that the county would add a service charge to these residents' real estate property tax bills. You further note that county officials have provided mixed responses about whether residents would be able to opt out of the county's refuse collection service. Finally, you report that many of the affected citizens are opposed to the county's plan.

Applicable Law and Discussion

Section 15.2-901 of the Code of Virginia grants localities the authority to require property owners to remove from their property "all trash, refuse, litter and other substances which might endanger the health or safety of other residents." The contours of that authority are governed by §§ 15.2-927 through 15.2-939.

The General Assembly has provided that "it has been and is continuing to be the policy of the Commonwealth to authorize each locality to displace or limit competition in the area of garbage, trash or refuse collection services" and stated that "governing bodies are directed and authorized to exercise all powers regarding garbage, trash, and refuse collection notwithstanding any anti-competitive effect." The Code defines "displace" to "mean[] a locality's provision of a service which prohibits a private company from providing the same service and which the company is providing at the time the decision to displace is made." Although the law does not explicitly authorize localities to mandate use of its trash collection over that of another provider, the language of these statutes clearly establishes that authority. I therefore conclude that the county may require its residents to join the trash collection service it provides.

The Code sets forth certain requirements the locality must satisfy before it exercises this authority. First, the county must hold at least one public hearing seeking comment on the advisability of the locality providing such service, and the county must provide notice of that hearing to the public and to all identifiable private companies that provide the service in its jurisdiction. Second, the governing body must make a written finding of at least one of the following: 1) adequate privately-owned collection services are unavailable; 2) the use of privately-owned and operated services has created a nuisance or has endangered public health; 3) available privately-owned services cannot provide the needed services in a reasonable and cost-efficient manner; or 4) displacement is necessary to develop or operate a regional refuse collection system. After making the requisite finding, the county then has one year to take the measures necessary for it to provide the service. Finally, before providing the service, the locality must either provide five years' notice to the displaced private company, or pay the company an amount equal to its previous 12-month's gross receipts from providing the service to the displacement area.

In addition, a county may assume exclusive control over trash collection when "at least 55% of the property owners in the displacement area petition the governing body to take over such collection service." It therefore is my opinion that a locality may require all the residents of a displacement area to join its trash collection service if at least 55% of that area's property owners have petitioned the county to take over trash collection.

Finally, given the broad authority conferred upon localities, a locality can, but is not required to, maintain a parallel public and private trash service. The county could, therefore, allow residents to opt out of the public trash collection service and maintain a private service.

Conclusion

Accordingly, it is my opinion that Fairfax County may compel residents who currently use trash collection services provided by a private entity to join the county trash collection program, provided that either the statutory requirements for service displacement are met, or 55% of the property owners in the displacement area want to participate in the county services. I also conclude that a county may, but is not required to, allow residents to opt out of the public trash collection service and maintain a parallel private collection service.

With warmest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General